When dealing with matters of domestic violence or allegations of domestic abuse, the legal issues can become very complicated. For the abused person, knowing what evidence must be presented, how to present the evidence, and what types of relief are available is crucial. Many abused persons say the wrong thing to a magistrate or judge and are denied a protective order. For a person accused of abuse, it is vitally important to know your rights and the defenses available in a protective order case. Whether you are an abused person or a person accused of abuse, what you say can and will be used against you. It is extremely important to retain the services of a lawyer who understands the issues involved with protective orders and who can protect your interests.
What Protection is AvailableA protective order can do the following:
- Legally order the abuser to stop abusive or threatening behavior
- Prohibit the abuser from contacting an individual at home, at work or by phone
- Order the abusive person removed from the home the absued person shares with him/her
- Grant temporary custody and visitation of the children
- Require the abuser to pay for the abused person and the children to live in another house
- Grant exclusive possession, but not title, of the home and/or jointly owned car to the abused person
- Require the abuser to go to treatment or counseling
- Provide other relief necessary for the abused person's protection
Additional Impact of Protective OrdersAnother consequence of protective orders, whether explicitly ordered by the court or not, is that the respondent cannot possess a firearm. Section 922(g) of the United States Code, which defines the federal laws, prohibits any respondent who has a protective order issued against him or her from possessing or transporting firearms. If the respondent does possess or transport a firearm, they face serious consequences. Virginia law expands on the provisions of the federal law. Code of Virginia Section 18.2-308.1:4 punishes the purchase and transportation of firearms. That section also requires any owner of a concealed weapon permit to surrender it during the life of the protective order. Failure to abide by these conditions is treated as a class 1 misdemeanor.
What Happens if you Violate a Protective Order?Violation of any other provision of the protective order is also considered a class 1 misdemeanor. Class 1 misdemeanors in Virginia are punishable up to a year in jail, a $2,500.00 fine, or both, and the conviction will remain on your record for life.
Types of Protective OrdersIn the family law context, protective orders are issued for domestic abuse. These orders can be emergency, preliminary or full. In addition, Virginia courts can also enter protective orders to protect children from harm, even where the harm does not rise to the level of family abuse.
Emergency Protective Orders. Section 16.1-253.4 of the Virginia Code allows a magistrate or juvenile court to issue an emergency protective order if there has been an allegation of family abuse or in conjunction with a warrant for assault and battery against a family member. In order to obtain a protective order, a person must testify that there is "immediate and present danger” of family abuse or that family abuse has recently occurred. Family abuse is violence against a family member or a threat of violence against a family member. A lawyer can advise you on what testimony will be necessary to obtain a protective order.
An emergency protective order is issued ex parte, with no notice to the alleged abuser. Ex parte means that the alleged abuser does not participate in the process. An emergency protective order expires 72 hours after it is issued. If the 72 hours end at a time when the court is not in session, the order is extended until 5:00 p.m. on the next business day that the juvenile and domestic relations district court is in session.
Preliminary Protective Orders. If a person needs a protective order for longer than 72 hours, he or she can file a petition in the juvenile court for a “preliminary protective order.” This process is also ex parte. The person seeking the order must give sworn testimony that family abuse has occured. If the judge finds the testimony to be sufficient, the judge can issue a preliminary protective order. A preliminary protective order lasts 15 days.
Full Protective Orders. A full protective order can be issued pursuant to Section 16.1-279 of the Virginia Code. Again, the person seeking the order must prove that family abuse occured. In order to obtain a full protective order, there must be a full hearing where the alleged accuser has the right to testify, cross examine witnesses, and introduce evidence. A full protective order can remain in effect for two years. This hearing will be scheduled at the time a preliminary protective order is issued.
For more information, please review our guide to protective orders.
Contact UsWhether you are seeking a protective order or fighting a protective order, it is vital to make sure you understand your rights, that you are counseled on the best course of action, and that your case is presented fully and accurately. To schedule a consultation call us at (434) 972-9600 or contact us.
Davidson and Kitzmann, PLC
211 E High Street
Charlottesville, Virginia 22902
Tel: (434) 972-9600
Fax: (434) 220-0011
We are located in Charlottesville, but our lawyers handle cases in Charlottesville, Albemarle County, Greene County, Fluvanna County, Louisa County, Nelson County, Madison County, Orange County, Roanoke, Harrisonburg, Staunton, Waynesboro, Augusta County, and across Virginia.